FLAGSHIP STUDIOS, INC. BETA TEST END USER LICENSE AGREEMENT
Updated Version: March 9, 2007
This Beta Test End User License Agreement ("Agreement") constitutes a valid and binding agreement between Flagship Studios, Inc., Ping0, LLC and their respective affiliates (singly and collectively, "Flagship") and you ("you," or "your") for the testing of the Software and the online game services related to the Software (the "Service"). As used in this Agreement, the term "Software" means the software program entitled "Mythos", any online or enclosed documentation, any and all copies and/or derivative works of such software and/or documentation, including without limitation, any and all "patches," future programming fixes, updates and upgrades provided to you. To use the Software, you must also create an account ("Account") to access and utilize the Service. The Software will not function unless (i) it is installed on a computer which meets its minimum installation requirements, including, without limitation, a functioning Internet connection of 56 kilo-bits per second or greater; (ii) and the user of the Software has a valid and existing Account. The Service is subject to a separate Terms of Service agreement ("Terms of Service") which you must agree to before creating an Account. You may view the Terms of Service. You may only use the Software if you have agreed to this Agreement and the Terms of Service.
BY CLICKING "I AGREE", YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK "I AGREE" AND DO NOT INSTALL THE SOFTWARE.
1. License Grant.
Subject to the terms of this Agreement and the Terms of Service, Flagship hereby grants you during the Beta Test Period, a limited, non-exclusive, personal, non-sublicensable, non-assignable license to download, install and use the Software onto a computer and to use the Software in conjunction with the Service solely for the purpose of evaluating the Software and the Service and providing feedback regarding the Software and the Service to Flagship. The Software may only be used in connection with the Service and in accordance with this Agreement and the Terms of Service and any rules, restrictions or documentation set forth by Flagship from time to time.
2. License Restrictions.
(a) Notwithstanding anything to the contrary, you may not: (i) remove any proprietary notices from the Service, Software or any copy of the Software; (ii) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Software or the Service; (iii) sell, assign, rent, lease, act as a service bureau, or grant rights in the Software or Service, including, without limitation, through sublicense, to any other entity without the prior written consent of Flagship; (iv) make any false, misleading or deceptive statement or representation regarding Flagship and/or the Software or Service; (v) export or re-export the Software in violation of United States or foreign export laws; (vi) use the Software or Service for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for, the use of the Software or Service or any manner not permitted by the licenses granted herein; (vii) use the Software or Service to, or in any way that would, violate any applicable law, regulation or ordinance; (viii) collect any information or communication about the Service or users of the Software or Service by monitoring, interdicting or intercepting any process of the Software or the Service; and (ix) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, packet-sniffer, addon, hack, trainer, mod, cheat, Trojan-horse routing, trap door, time bomb or any other codes or instructions that are designed to be used to provide a means of surreptitious or unauthorized access or that are designed to distort, delete, damage, monitor, mine, enhance or disassemble the Software or the Service (collectively, "Unauthorized Programs"). Furthermore, you may not use the Software or Service to develop, generate, transmit or store information that: (A) infringes Flagship or any third party intellectual property or other proprietary right; (B) is defamatory, harmful, abusive, obscene or hateful; (C) in any way obstructs or otherwise interferes with the normal performance of another person's use of the Software or Service, (D) performs any unsolicited commercial communication not permitted by applicable law; (E) constitutes harassment or a violation of privacy or threatens other people or groups of people; or (F) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person's identity (whether a real identity or online nickname or alias).
(b) The Software and Service may be incorporated into, and may incorporate, technology, software and services owned and controlled by third parties. Use of such third party software or services is subject to the terms and conditions of the applicable third party license agreements, and you agree to look solely to the applicable third party and not to Flagship to enforce any of your rights in relation thereto. All modifications or enhancements to the Software and Service remain the sole property of Flagship. You understand that Flagship, in its sole discretion, may modify or discontinue or suspend your right to access the Service or use any of the Software at any time, and may at any time suspend or terminate any license hereunder and disable any Software you may already have accessed or installed without prior notice. Flagship reserves the right to add or remove features or functions to the Software and/or Service at any time in its sole discretion. When installed on your computer, the Software periodically communicates with Flagship servers. You acknowledge and agree that Flagship has no obligation to make available to you any subsequent versions of its software applications.
3. Beta Test Reports and Discussions.
(a) In consideration of your use of the Software and Service, you agree to provide, if so requested, Flagship with written software problem reports, usability comments, and other observations from time to time. You further agree to timely respond to test and usage surveys requested by Flagship. You agree that Flagship shall have the right, with or without notice to you, to terminate your Account at any time due to your failure to fulfill the obligations set forth herein.
(b) Any problem reports, usability reports, test results and other feedback made by you shall be the sole property of Flagship, may be used by Flagship for any purpose it sees fit and shall be deemed Confidential Information of Flagship. Due to the nature of the development work, Flagship is not certain as to when or whether errors or discrepancies in the Software may be corrected.
4. Monitoring and Reporting of Unauthorized Software.
In order to receive the benefits provided by the Software, you hereby grant permission for (a) the Software to monitor your computer (including, but not limited to, your computer's random access memory) and to communicate information to Flagship's servers for the purposes of analyzing your computer's performance during use of the Software and discovering any such Unauthorized Programs, including, without limitation, the type of Unauthorized Programs, your Account information, and the date and time when such Unauthorized Programs were discovered; and (b) Flagship to exercise any or all of its rights under this Agreement and the Terms of Service, with or without notice to you, including, without limitation suspending or terminating your Account.
5. Proprietary Rights.
The Software and Service contain proprietary and Confidential Information of Flagship, including copyrights which are protected by international copyright laws, trade secrets and trademarks contained in the Software and/or Service. Title to and ownership of the Software, including without limitation all intellectual property rights in and to the Software, are and shall remain the exclusive property of Flagship and its licensors, and except for the limited license granted to you by Flagship, Flagship reserves all right, title and interest in and to the Software. You shall not take any action to jeopardize, limit or interfere with Flagship's ownership of and rights with respect to the Software and Service. You acknowledge that any unauthorized copying or unauthorized use of the Software or Service is a violation of this Agreement and is strictly prohibited.
6. Term and Termination.
(a) This Agreement will be effective as of the date you accept this Agreement, thereby expressly agreeing to the terms and conditions set forth herein, and will remain effective until the earlier of: (i) Flagship's completion of the Beta Test Period, either with or without notice to you, or (ii) termination by either party as set forth below. As used herein, the term "Beta Test Period" means the period of time from the date you accept this Agreement until the date on which Flagship completes the testing period for the Beta version of the Software provided to you by Flagship.
(b) You may terminate this Agreement at any time provided you cease all use of the Software and Service AND destroy or remove from all hard drives, networks, and other storage media all copies of the Software in your possession. Flagship may terminate this Agreement at any time, with or without cause, by providing notice to you and/or preventing your access to the Software and/or Service.
(c) Upon termination of this Agreement for any reason (i) all licenses and rights to use the Software and the Service shall terminate, including without limitation, your Account, ID and Password (as those terms are defined in Section 7 below) and you must remove the Software from your computer equipment and dispose of all originals and copies of the Software in your possession, and (ii) Sections 2, 5, 6(c), and 7 through 15 shall survive such termination.
7. User ID and Password.
To create an Account, you must establish a user identification name (an "ID") and password (a "Password"). Maintaining the confidentiality and security of your Password(s) and ID(s) is solely your responsibility. You are fully responsible for the use and protection of your Password(s) and ID(s) and for all transactions undertaken through your Account(s). You shall notify Flagship immediately at customercare@ping-0.com of any unauthorized use of your Account(s) or any breach of security, including without limitation, any loss, theft or unauthorized use of your Password(s), and/or ID(s). Flagship has the right to suspend or terminate your Account(s) due to a suspected breach of security or as otherwise provided under this Agreement. Flagship shall not be responsible for any losses incurred in connection with any misuse of any Password, ID or Account.
8. Your Representations and Warranties.
(a) You represent and warrant that (i) you possess the legal right and ability to enter into this Agreement and to comply with its terms, (ii) you will use the Software and Service for lawful purposes only and in accordance with this Agreement and all applicable laws, regulations and policies, (iii) you will not attempt to decompile, reverse engineer or hack the Software or the Service or to defeat or overcome any encryption and/or other technical protection methods implemented by Flagship with respect to the Software and/or data transmitted, processed or stored by Flagship or other users of the Software, (iv) you will not take any steps to interfere with or in any manner compromise any of Flagship's security measures, any other individual's or entity's computer utilizing the Software and/or Service, (v) you will always provide and maintain true, accurate, current and complete information as requested by Flagship, (vi) you shall not sell, lend, lease, trade, rent, barter, sublicense, assign, transfer or grant rights in any manner to any ID, Password or Account held by you, (vii) you are of a lawful age in your applicable jurisdiction to enter into this Agreement and install and use the Software and Service, and (viii) you will only use the Software and Service on a computer on which such use is authorized by the computer's owner or lessee, as applicable.
(b) You agree that you will not use any automatic or manual device or process (including, without limitation, Unauthorized Software) to interfere or attempt to interfere with the proper working of the Software or Service, except to remove the Software from a computer of which you are an owner or authorized user in a manner permitted by this Agreement. You may not violate or attempt to violate the security of the Software or Service. Flagship reserves the right to investigate occurrences which may involve such violations, and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations. You agree to cooperate fully in any such investigations and you expressly acknowledge and agree that Flagship may disclose your personal information and Service activities to comply with law enforcement or any legal, governmental or regulatory order or action.
(c) If Flagship has reasonable grounds to suspect that your representations, warranties or promises are inaccurate or breached, Flagship may terminate this license, your Password(s), ID(s) and Account(s), deny any or all use of the Software and/or Service, and pursue any appropriate legal remedies.
9. Indemnity.
You agree to indemnify, hold harmless and defend Flagship and its affiliates, parent companies, subsidiaries, officers, directors, employees, agents, network service providers, business partners and licensors (collectively, the "Indemnified Parties") at your expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys' fees and other dispute resolution expenses) incurred by Flagship arising out of or relating to your (a) violation or breach of any term of this Agreement or any policy or guidelines referenced herein, including any unauthorized disclosure of Confidential Information or (b) use or misuse of the Software and/or Service.
10. Disclaimer of Warranties.
(a) THE SOFTWARE AND SERVICE ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY FLAGSHIP, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SOFTWARE OR SERVICE, INCLUDING ANY WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. FLAGSHIP FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE OR ANY SERVICE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ERROR-FREE, OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES FLAGSHIP WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF CALLS MADE THROUGH THE SOFTWARE OR THE SERVICE.
(b) YOU ACKNOWLEDGE THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE AND SERVICE REMAINS WITH YOU TO THE MAXIMUM EXTENT PERMITTED BY LAW.
(c) As some jurisdictions do not allow some of the exclusions set forth in this Section 10, some of these exclusions may not apply to you.
11. Limitation of Liability.
(a) IN NO EVENT SHALL FLAGSHIP, ITS PARENT COMPANIES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, NETWORK SERVICE PROVIDORS OR LICENSORS BE LIABLE TO YOU WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OR OTHER THEORY), FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, SERVICE INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE INSTALLATION, UNINSTALLATION, USE OR INABILITY TO USE THE SOFTWARE OR THE SERVICE, INCLUDING ANY DAMAGES RESULTING THEREFROM, EVEN IF FLAGSHIP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) YOUR ONLY RIGHT WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SOFTWARE AND/OR SERVICE IS TO UNINSTALL AND CEASE USE OF SUCH SOFTWARE AND SERVICE.
(c) As some jurisdictions do not allow some of the exclusions set forth in this Section 11, some of these exclusions may not apply to you.
12. Equitable Remedies.
You hereby agree that Flagship would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that Flagship shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as Flagship may otherwise have available to it under applicable laws. In the event any litigation is brought by either party in connection with this Agreement, the prevailing party in such litigation shall be entitled to recover from the other party all the costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.
13. Electronic Signatures and Agreements.
You acknowledge and agree that by clicking on the button labeled "SUBMIT", "DOWNLOAD", "I ACCEPT" or such similar links as may be designated by Flagship to download the Software to accept the terms and conditions of this Agreement, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SOFTWARE OR SERVICE. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records.
14. General Provisions.
Flagship reserves all rights not expressly granted in this Agreement. Flagship may modify this Agreement and Terms of Service at any time by providing such revised Agreement or Terms of Service to you or posting the revised Agreement or Terms of Service on its website located at www.mythos.com. Your continued use of the Software and/or Service shall constitute your acceptance of such revised Agreement and/or Terms of Service. You may not assign this Agreement or any rights hereunder. Nothing in this Agreement shall constitute a partnership, agency or joint venture between you and Flagship. Should any term or provision of this Agreement be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement shall remain in full force and effect. The failure of Flagship at any time or times to require performance of any provision of this Agreement shall in no manner affect its right at a later time to enforce the same unless the same is waived in writing. This Agreement shall be governed by and construed in accordance with the laws of the State of California, United States of America without regard to its conflict of law rules. Any legal proceeding arising out or relating to this Agreement will be subject to the exclusive jurisdiction of the State and Federal courts of San Francisco County, California and you irrevocably consent to the jurisdiction of such courts. The terms set forth in this Agreement and the Terms of Service constitute the final, complete and exclusive agreement with respect to the Software and Service and may not be contradicted, explained or supplemented by evidence of any prior agreement, any contemporaneous oral agreement or any consistent additional terms. Flagship may, at its sole discretion, assign this Agreement without giving prior notice.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CONTINUING TO INSTALL THE SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO FLAGSHIP THE RIGHTS SET FORTH HEREIN.
This Beta Test End User License Agreement ("Agreement") constitutes a valid and binding agreement between Flagship Studios, Inc., Ping0, LLC and their respective affiliates (singly and collectively, "Flagship") and you ("you," or "your") for the testing of the Software and the online game services related to the Software (the "Service"). As used in this Agreement, the term "Software" means the software program entitled "Mythos", any online or enclosed documentation, any and all copies and/or derivative works of such software and/or documentation, including without limitation, any and all "patches," future programming fixes, updates and upgrades provided to you. To use the Software, you must also create an account ("Account") to access and utilize the Service. The Software will not function unless (i) it is installed on a computer which meets its minimum installation requirements, including, without limitation, a functioning Internet connection of 56 kilo-bits per second or greater; (ii) and the user of the Software has a valid and existing Account. The Service is subject to a separate Terms of Service agreement ("Terms of Service") which you must agree to before creating an Account. You may view the Terms of Service. You may only use the Software if you have agreed to this Agreement and the Terms of Service.
BY CLICKING "I AGREE", YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK "I AGREE" AND DO NOT INSTALL THE SOFTWARE.
1. License Grant.
Subject to the terms of this Agreement and the Terms of Service, Flagship hereby grants you during the Beta Test Period, a limited, non-exclusive, personal, non-sublicensable, non-assignable license to download, install and use the Software onto a computer and to use the Software in conjunction with the Service solely for the purpose of evaluating the Software and the Service and providing feedback regarding the Software and the Service to Flagship. The Software may only be used in connection with the Service and in accordance with this Agreement and the Terms of Service and any rules, restrictions or documentation set forth by Flagship from time to time.
2. License Restrictions.
(a) Notwithstanding anything to the contrary, you may not: (i) remove any proprietary notices from the Service, Software or any copy of the Software; (ii) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Software or the Service; (iii) sell, assign, rent, lease, act as a service bureau, or grant rights in the Software or Service, including, without limitation, through sublicense, to any other entity without the prior written consent of Flagship; (iv) make any false, misleading or deceptive statement or representation regarding Flagship and/or the Software or Service; (v) export or re-export the Software in violation of United States or foreign export laws; (vi) use the Software or Service for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for, the use of the Software or Service or any manner not permitted by the licenses granted herein; (vii) use the Software or Service to, or in any way that would, violate any applicable law, regulation or ordinance; (viii) collect any information or communication about the Service or users of the Software or Service by monitoring, interdicting or intercepting any process of the Software or the Service; and (ix) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, packet-sniffer, addon, hack, trainer, mod, cheat, Trojan-horse routing, trap door, time bomb or any other codes or instructions that are designed to be used to provide a means of surreptitious or unauthorized access or that are designed to distort, delete, damage, monitor, mine, enhance or disassemble the Software or the Service (collectively, "Unauthorized Programs"). Furthermore, you may not use the Software or Service to develop, generate, transmit or store information that: (A) infringes Flagship or any third party intellectual property or other proprietary right; (B) is defamatory, harmful, abusive, obscene or hateful; (C) in any way obstructs or otherwise interferes with the normal performance of another person's use of the Software or Service, (D) performs any unsolicited commercial communication not permitted by applicable law; (E) constitutes harassment or a violation of privacy or threatens other people or groups of people; or (F) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person's identity (whether a real identity or online nickname or alias).
(b) The Software and Service may be incorporated into, and may incorporate, technology, software and services owned and controlled by third parties. Use of such third party software or services is subject to the terms and conditions of the applicable third party license agreements, and you agree to look solely to the applicable third party and not to Flagship to enforce any of your rights in relation thereto. All modifications or enhancements to the Software and Service remain the sole property of Flagship. You understand that Flagship, in its sole discretion, may modify or discontinue or suspend your right to access the Service or use any of the Software at any time, and may at any time suspend or terminate any license hereunder and disable any Software you may already have accessed or installed without prior notice. Flagship reserves the right to add or remove features or functions to the Software and/or Service at any time in its sole discretion. When installed on your computer, the Software periodically communicates with Flagship servers. You acknowledge and agree that Flagship has no obligation to make available to you any subsequent versions of its software applications.
3. Beta Test Reports and Discussions.
(a) In consideration of your use of the Software and Service, you agree to provide, if so requested, Flagship with written software problem reports, usability comments, and other observations from time to time. You further agree to timely respond to test and usage surveys requested by Flagship. You agree that Flagship shall have the right, with or without notice to you, to terminate your Account at any time due to your failure to fulfill the obligations set forth herein.
(b) Any problem reports, usability reports, test results and other feedback made by you shall be the sole property of Flagship, may be used by Flagship for any purpose it sees fit and shall be deemed Confidential Information of Flagship. Due to the nature of the development work, Flagship is not certain as to when or whether errors or discrepancies in the Software may be corrected.
4. Monitoring and Reporting of Unauthorized Software.
In order to receive the benefits provided by the Software, you hereby grant permission for (a) the Software to monitor your computer (including, but not limited to, your computer's random access memory) and to communicate information to Flagship's servers for the purposes of analyzing your computer's performance during use of the Software and discovering any such Unauthorized Programs, including, without limitation, the type of Unauthorized Programs, your Account information, and the date and time when such Unauthorized Programs were discovered; and (b) Flagship to exercise any or all of its rights under this Agreement and the Terms of Service, with or without notice to you, including, without limitation suspending or terminating your Account.
5. Proprietary Rights.
The Software and Service contain proprietary and Confidential Information of Flagship, including copyrights which are protected by international copyright laws, trade secrets and trademarks contained in the Software and/or Service. Title to and ownership of the Software, including without limitation all intellectual property rights in and to the Software, are and shall remain the exclusive property of Flagship and its licensors, and except for the limited license granted to you by Flagship, Flagship reserves all right, title and interest in and to the Software. You shall not take any action to jeopardize, limit or interfere with Flagship's ownership of and rights with respect to the Software and Service. You acknowledge that any unauthorized copying or unauthorized use of the Software or Service is a violation of this Agreement and is strictly prohibited.
6. Term and Termination.
(a) This Agreement will be effective as of the date you accept this Agreement, thereby expressly agreeing to the terms and conditions set forth herein, and will remain effective until the earlier of: (i) Flagship's completion of the Beta Test Period, either with or without notice to you, or (ii) termination by either party as set forth below. As used herein, the term "Beta Test Period" means the period of time from the date you accept this Agreement until the date on which Flagship completes the testing period for the Beta version of the Software provided to you by Flagship.
(b) You may terminate this Agreement at any time provided you cease all use of the Software and Service AND destroy or remove from all hard drives, networks, and other storage media all copies of the Software in your possession. Flagship may terminate this Agreement at any time, with or without cause, by providing notice to you and/or preventing your access to the Software and/or Service.
(c) Upon termination of this Agreement for any reason (i) all licenses and rights to use the Software and the Service shall terminate, including without limitation, your Account, ID and Password (as those terms are defined in Section 7 below) and you must remove the Software from your computer equipment and dispose of all originals and copies of the Software in your possession, and (ii) Sections 2, 5, 6(c), and 7 through 15 shall survive such termination.
7. User ID and Password.
To create an Account, you must establish a user identification name (an "ID") and password (a "Password"). Maintaining the confidentiality and security of your Password(s) and ID(s) is solely your responsibility. You are fully responsible for the use and protection of your Password(s) and ID(s) and for all transactions undertaken through your Account(s). You shall notify Flagship immediately at customercare@ping-0.com of any unauthorized use of your Account(s) or any breach of security, including without limitation, any loss, theft or unauthorized use of your Password(s), and/or ID(s). Flagship has the right to suspend or terminate your Account(s) due to a suspected breach of security or as otherwise provided under this Agreement. Flagship shall not be responsible for any losses incurred in connection with any misuse of any Password, ID or Account.
8. Your Representations and Warranties.
(a) You represent and warrant that (i) you possess the legal right and ability to enter into this Agreement and to comply with its terms, (ii) you will use the Software and Service for lawful purposes only and in accordance with this Agreement and all applicable laws, regulations and policies, (iii) you will not attempt to decompile, reverse engineer or hack the Software or the Service or to defeat or overcome any encryption and/or other technical protection methods implemented by Flagship with respect to the Software and/or data transmitted, processed or stored by Flagship or other users of the Software, (iv) you will not take any steps to interfere with or in any manner compromise any of Flagship's security measures, any other individual's or entity's computer utilizing the Software and/or Service, (v) you will always provide and maintain true, accurate, current and complete information as requested by Flagship, (vi) you shall not sell, lend, lease, trade, rent, barter, sublicense, assign, transfer or grant rights in any manner to any ID, Password or Account held by you, (vii) you are of a lawful age in your applicable jurisdiction to enter into this Agreement and install and use the Software and Service, and (viii) you will only use the Software and Service on a computer on which such use is authorized by the computer's owner or lessee, as applicable.
(b) You agree that you will not use any automatic or manual device or process (including, without limitation, Unauthorized Software) to interfere or attempt to interfere with the proper working of the Software or Service, except to remove the Software from a computer of which you are an owner or authorized user in a manner permitted by this Agreement. You may not violate or attempt to violate the security of the Software or Service. Flagship reserves the right to investigate occurrences which may involve such violations, and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations. You agree to cooperate fully in any such investigations and you expressly acknowledge and agree that Flagship may disclose your personal information and Service activities to comply with law enforcement or any legal, governmental or regulatory order or action.
(c) If Flagship has reasonable grounds to suspect that your representations, warranties or promises are inaccurate or breached, Flagship may terminate this license, your Password(s), ID(s) and Account(s), deny any or all use of the Software and/or Service, and pursue any appropriate legal remedies.
9. Indemnity.
You agree to indemnify, hold harmless and defend Flagship and its affiliates, parent companies, subsidiaries, officers, directors, employees, agents, network service providers, business partners and licensors (collectively, the "Indemnified Parties") at your expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys' fees and other dispute resolution expenses) incurred by Flagship arising out of or relating to your (a) violation or breach of any term of this Agreement or any policy or guidelines referenced herein, including any unauthorized disclosure of Confidential Information or (b) use or misuse of the Software and/or Service.
10. Disclaimer of Warranties.
(a) THE SOFTWARE AND SERVICE ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY FLAGSHIP, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SOFTWARE OR SERVICE, INCLUDING ANY WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. FLAGSHIP FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE OR ANY SERVICE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ERROR-FREE, OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES FLAGSHIP WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF CALLS MADE THROUGH THE SOFTWARE OR THE SERVICE.
(b) YOU ACKNOWLEDGE THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE AND SERVICE REMAINS WITH YOU TO THE MAXIMUM EXTENT PERMITTED BY LAW.
(c) As some jurisdictions do not allow some of the exclusions set forth in this Section 10, some of these exclusions may not apply to you.
11. Limitation of Liability.
(a) IN NO EVENT SHALL FLAGSHIP, ITS PARENT COMPANIES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, NETWORK SERVICE PROVIDORS OR LICENSORS BE LIABLE TO YOU WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OR OTHER THEORY), FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, SERVICE INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE INSTALLATION, UNINSTALLATION, USE OR INABILITY TO USE THE SOFTWARE OR THE SERVICE, INCLUDING ANY DAMAGES RESULTING THEREFROM, EVEN IF FLAGSHIP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) YOUR ONLY RIGHT WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SOFTWARE AND/OR SERVICE IS TO UNINSTALL AND CEASE USE OF SUCH SOFTWARE AND SERVICE.
(c) As some jurisdictions do not allow some of the exclusions set forth in this Section 11, some of these exclusions may not apply to you.
12. Equitable Remedies.
You hereby agree that Flagship would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that Flagship shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as Flagship may otherwise have available to it under applicable laws. In the event any litigation is brought by either party in connection with this Agreement, the prevailing party in such litigation shall be entitled to recover from the other party all the costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.
13. Electronic Signatures and Agreements.
You acknowledge and agree that by clicking on the button labeled "SUBMIT", "DOWNLOAD", "I ACCEPT" or such similar links as may be designated by Flagship to download the Software to accept the terms and conditions of this Agreement, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SOFTWARE OR SERVICE. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records.
14. General Provisions.
Flagship reserves all rights not expressly granted in this Agreement. Flagship may modify this Agreement and Terms of Service at any time by providing such revised Agreement or Terms of Service to you or posting the revised Agreement or Terms of Service on its website located at www.mythos.com. Your continued use of the Software and/or Service shall constitute your acceptance of such revised Agreement and/or Terms of Service. You may not assign this Agreement or any rights hereunder. Nothing in this Agreement shall constitute a partnership, agency or joint venture between you and Flagship. Should any term or provision of this Agreement be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement shall remain in full force and effect. The failure of Flagship at any time or times to require performance of any provision of this Agreement shall in no manner affect its right at a later time to enforce the same unless the same is waived in writing. This Agreement shall be governed by and construed in accordance with the laws of the State of California, United States of America without regard to its conflict of law rules. Any legal proceeding arising out or relating to this Agreement will be subject to the exclusive jurisdiction of the State and Federal courts of San Francisco County, California and you irrevocably consent to the jurisdiction of such courts. The terms set forth in this Agreement and the Terms of Service constitute the final, complete and exclusive agreement with respect to the Software and Service and may not be contradicted, explained or supplemented by evidence of any prior agreement, any contemporaneous oral agreement or any consistent additional terms. Flagship may, at its sole discretion, assign this Agreement without giving prior notice.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CONTINUING TO INSTALL THE SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO FLAGSHIP THE RIGHTS SET FORTH HEREIN.
Flash is onCopyright Flagship Studios, Inc. 2007. All rights reserved.
Mythos, Flagship Studios, the Mythos logo and Flagship Studios logos are the trademarks and/or registered trademarks of Flagship Studios, Inc.
Ping0 and the Ping0 logo are trademarks and/or registered trademarks of Ping0 Interactive Limited throughout the world.
